CH.

APTER-IO : 419

INFRINGEMENT OF COPYRIGHT

Free trade doesn't require that one should be allowed to appropri-

ate the fruits of another's labour, whether they are tangible or intan-
gible. The law has not found it possible to give full protection to the
intangible. But it can protect the intangible in certain states, and one of
them is when it is expressed in words or print. The infringement of
copyright of another, therefore, assumes great importance. Infringe-
ment of copyright may be divided into direct infringements which
consists of the unauthorised exercise by persons not being the copyright
owners of rights restricted by relevant copyright statute, and indirect
infringements, which consists of unauthorised dealings with works
which are themselves direct infringements or unauthorised importations.
After discussing the nature and scope of copyright in its various
manifestations in the preceding chapters, this chapter examines the
issues relating to infringement of copyright such as what constitutes
infringement ? What are the types of infringements ? How far defence
of "fair use" can be taken in a case of infringement ? How does "fair
u s e " balance the interest of the copyright owners and that of public ?

(A) BASIC CONCEPTS OF INFRINGEMENT ;

The copyright statutes of the three countries which form subject
matter of this study define in some detail the types of activity which
constitute infringement of the various forms of copyright.
The rights of the copyright owners may roughly be classified into
"reproduction" rights and "performing" rights. The more detailed
CH.APTER - 10 : 420

Statutory categories which can be placed under these heads are to be

taken up later in the Chapter. But first, there are four basic matters to
discuss : Copyright must be distinguished from rights in the physical
embodiment of the original work; then come two aspects of the subject-
matter improperly taken-the need to show that the defendent has
misappropriated the actual work and that this has been to a substantial
extent; the last concerns the infringer - the degree to which he may
infringe by authorising the acts of others.

(i) Ownership of the Original Work :

Copyright in a work gives rights that are distinct from ownership
of the physical embodiment of the original work - the manuscript, letter,
painting or whatever. When one person sends another a letter, he will
normally be taken to intend a gift of the paper on which it is written and
the recipient becomes its owner. Only if the conditions of confidence
exist, can the author prevent it being shown, given or sold to other.' But
sending a private letter implies no assignment or licence of the copy-
right in it and the recipient has no right to make copies or give
performances of its content.^ The same is true of artistic works. The
artist's lack of rights in the original painting or sculpture, once he
disposes it off, is often a considerable economic disadvantage and has
led a few legal systems to introduce a special right to share in the
proceeds of certain re-sales.' But such a sale assigns no copyright
unless this is separately expressed or can be implied from the purpose
of the transaction.*
CH.APTER - 10 : 421

ii) Misappropriation

Misappropiration can be studied under following sub-heads,

a) Casual Connection

The plaintiff must prove that, directly or indirectly, the defendant's

alleged infringement is taken from the work or subject-matter in which
he claims copyright. - This is fundamental to the whole concept of
copyright, and distinguishes it from the full monopoly of the patent
system. Despite the very term, copyright, the U.K.legislation has, until
1988, mostly avoided reference to "copying". Now that word is used
in relation to the making and marketing of reproductions. But equally
there must also be copying in a general sense for infringement of the
performing rights. The owner must show that this casual connection is
the explanation of the similarity between the work and the infringement
- the other possibilities being that he copied from the defendant, that
they both copied from a common source, or that they arrived at their
results independently.^ On the other hand, he does not have to show that
the defendant knew that his copying constituted an infringement. As
with other rights of property recognised at common law, the primary
exclusive rights may be asserted even against the defendant who
honestly believes that he purchased the right to reproduce the work.^
If the evidence shows that there are striking similarities between
the two works, that the plaintiff's was the earlier in time and that the
defendant had the opportunity to get to know the plaintiff's work, then
a court may well find copying proved in the absence of any convincing
explanation to the contrary by the defendant." But the judges have
CH.APTER - 10 : 422

hesitated to fetter the assessment of each case on its facts by the

introduction of rules formally shifting the burden of proof from plaintiff
to defendant at any stage of the trial.' Some subject - matter, such as
factual and historical information, may well drive from independent
effort or a common source.'"

(b) Sub-Conscious Copying :

Particular difficulty arises when the defendant denies any inten-
tion to copy and the court believes him. Some judges have accepted that
copying could occur subconsciously where a person reads, sees or hears
a work, forgets about it but then reproduces it, genuinely believing it to
be his own." In such a case, proof of copying is said to depend on "a
number of composite elements : The degree of familiarity (if proved at
all, or properly inferred) with the plaintiff's work, the character of the
work, particularly its qualities of impressing the mind and memory, the
objective similarity of the defendant's work, the inherent probability
that such similarity as is found could be due to coincidence, the
existence of other influences on the defendant the... quality of the
defendant's... own evidence on the presence or otherwise in his mind of
the plaintiff's work.'^

(c) Indirect Copying :

It has long been accepted that a work may be copied by imitating
a copy of it : "to hold otherwise would be to open the door to indirect
piracies, which 1 am not at all disposed to do."'^ Like wise if a novel is
turned into a play, which is in turn converted into a ballet, the same will
apply. In I'urefoy v. Sykes Haxall, P made a trade catalogue with
CH.APTER - 10 : 423

illustrations of his products and D also published a catalogue with

pictures of his own products, which were copied from P's products. In
this alone there was no infringement of P's catalogue, for it was not that
catalogue but the products which were the starting point in the chain.'^
On the other hand, if the plaintiff's parts were reproductions of copy-
right drawings, the defendant's illustrations would derive from those
drawings. But to establish the linkage is not enough. It is also necessary
to show that the defendant's ultimate use is substantial reproduction of
the plaintiff's work - this is simply the general requirement discussed
below. In providing that infringement may be direct or indirect, the
latest U.K. Statute also renders it immaterial that any intervening act
does not itself constitute infringement.'^

(B) SUBSTANTIAL TAKING :

Where there has been copying and all or virtually all of a work is
taken without emendation, the proof of infringement is straightforward;
difficulties arise to the extent that this is not the case. The copyright
statutes of the three countries require that a substantial part must have
been copied.'* This test is a major tool for giving expression to the
court's sense of fair play so "the question whether the defendant has
copied a substantial part depends much more on the quality than the
quantity of what he has taken".'"' Likewise it has often been insisted that
the copying must be of the expression of ideas, rather than just of the
ideas. But that is a distinction with an ill-defined boundary. Judges who
incline to the view that "what is worth copying is prima facie worth
protecting"'^ may well stretch the notion of "expression" a consider-
CH.APTER - 10 : 424

able way. Once convinced that the defendant unfairly cut a competitive
corner by setting out to revamp the plaintiff's completed work, they will
not easily be dissuaded that the alternations have been sufficient.''' In
this approach, the taking of ideas alone is confined to cases where the
defendant does not start from the completed work at all, save in the
sense that he goes through a similar process of creation : as where he
paints for himself the scene that the plaintiff painted^", or draws his own
cartoon for the same basic joke.^'
The assessment of each case turns a good deal on its own
circumstances. But there are some general considerations which may
well have a bearing on the result. These are worth illustrating.

(i) Unaltered Copying :

If the defendant has copied without additions or alterations to the
part taken, the proportion of that part to the whole of the plaintiff's work
need not be large : a short extract from a poem, a recognisable segment
ofa painting, the refrain of a pop-song. The issue is not much contexted,
but, given the new copying technology, its practical importance is
considerable.

(li) Extent of Defendant's Alteration :

Where the defendant has reworked the plaintiff's material there
comes a point beyond which the plaintiff has no claim. Whatever may
have been the position in the part, the fact that the defendant has himself
added enough by way of skill, labour and judgement to secure copyright
for his effort does not, under the present law, settle the question whether
he has infringed : rather the issue is whether a substantial part of the
CH.APTER - 10 : 425

plaintiff's work survives in the defendant's so as to appear to be a copy of it.-'

Particular difficulty arises when the plaintiff's work is taken with
intent to satirise - whether the butt in mind is the work itself or some
quite different object. In Glyn V. Weston Feature^^ a filmed burlesque
(or, in today's language, "send-up") of Elinon Glyn's once notorious
novel. Three Weeks, was held not to infringe because very little by way
of incident was taken over from novel to film. Likewise in Joy Music V.
Sunday PictoriaP, a song lyric had been parodied in pursuit of Prince
Philip; but only one repeated phrase was taken, and that with pointed
variation. Again there was no infringement. In both decisions it was
asked whether the defendant had bestowed such mental labour on what
he had taken and subjected it to revision and alteration as to produce an
original work.^"* This must be understood as a way of emphasising that
nothing substantial must remain from the plaintiff's work.^' While in
the past, English judges have seemed loathe to find sufficient copying
in borderline parody cases, they have now also to consider the moral
right of integrity.
A rather similar difficulty relates to resumes - summarised plots
of plays, abridgments of novels, head notes of law reports, and so on.
There has been a tendency to treat a really substantial precis of contents
as permissible because it is useful or because it is no serious interfer-
ence with the plaintiff's interests. To this end it has been asked whether
the defendant has really produced a "new work".^* In this context the
phrase seems to indicate a very substantial condensation and revision of
the material. With this should be contrasted the Court of Appeal's grant
of an interlocutory injunction in lilanco V. Mandops .^' The defendants
CH.APTER - 10 : 426

first copied the plaintiff's instruction leaflet for a weed killer and had
to withdraw it; they then produced a revision giving the same detailed
information in other words. This was held to create an arguable case of
infringement because the defendants were not entitled to make use of
the plaintiff's skill and judgement in securing the information.

(lit) Character of Plaintifrs or Defendant's Work :

Certain types of work are treated as having a particular value; to
appropriate this feature is accordingly of qualitative significance. This
is particularly true of dramatic works and films. In periods when stock
dramas made the staple of so much Englifh theatre, there were frequent
allegations of improper borrowings. After 1911, a series of cases-**
settled that "if the plot of a story, whether some of it be found in a play
or in a novel, is taken bodily with or without some minor additions or
substractions for the purposes of a stage or cinema film, there is no
doubt about the case".^^ It was not necessary to copy the actual words
used to work out the plot.^" This approach shows, the concept of mere
ideas being confined to "starting point" conceptions - it would be no
more than an idea, for instance, to conceive of a play about the return
of a husband who has been presumed dead.^' But where the works in
question are both nondramatic, probably more by way of detailed
incident and language must be taken before there is substantial copying.
Whether the works are artistic, and the court is testing sufficient
similarity by appeal to the eye, stress is sometimes laid upon the
"feeling and artistic character" of the plaintiff's work."
CH.APTER - 10 : 427

(iv) Nature of Plaintifrs Effort :

In some cases, the plaintiff's "skill, labour and judgement" form
a distinct part of the whole result. This may well be so where the effort
consists of such secondary work as editing, compiling or selecting
material. A court will treat the whole work as the subject of copyright.
But whether there is substantial taking falls to be judged by reference
to the plaintiff's contribution. In Warnick Film V. Eisinger^^, an author
published an edited version of Oscar Wilde's trials, a transcript of
which had earlier appeared. He acquired copyright in the whole from
his work in selection and providing linking passages. But a defendant
who took from it passages of the transcript but very little of author's
edition was held not to infringe.
This nearly adjusts the scope of protection to the author's literary
effort. The same approach can be seen to apply to some cases where the
real skill lies in some commercial assessment distinct from the expres-
sive content of the work : thus in the football pool coupon cases, where
it is the particular selection that is so significant, protection goes to
taking the selection more or less as a whole. This corelation of protec-
tion with achievement is not easily made in all such cases. Where, for
instance, the skill consists in recording some one else's performance, it
is arguable that there should be infringement only where some consid-
erable part of the whole is taken. The same might be said of the
entrepreneurial copyright - particularly that for typographical format,
since it is not associated with the artistic execution of performers,
directions or the like. But this sort of consideration is at present
speculative.
CH.APTER - 10 : 428

(v) Extent of Plaintifrs Effort :

If the plaintiff's labour, skill and judgement have only been just
enough to earn him copyright, infringement may arise only where there
is exact imitation of such features as are of some individuality. In
Kenrick V. Lawrence,-'^ the plaintiff claimed copyright in a simple
drawing of a hand, made with the intention of showing voters where to
register their vote on a ballot form. But it was held that only an exact
copy of the drawing would infringe, if the plaintiff were not to be
conceded a monopoly in drawings of hands for this and other purposes.
Through this consideration also the court is able to take account of the
overall merit of the plaintiff's work.

(vi) Manner in Which the Defendant Had Taken Advantage

of Plaintiff's Work :

Where the plaintiff's work records information, the use that a

defendant may make of it for his own purposes has been carefully
circumscribed. The defendant is entitled to use the plaintiff's work as
a source of ideas or information if he takes it as a starting point for his
own collation of information or as a means of checking his own
independent research.^' But he is not entitled to copy what the plaintiff
has done as a substitute for exercising his own labour, skill and
judgement. And he will not escape having his conduct so regarded
merely by taking the plaintiff's work and checking that its contents are
accurate. Thus, it was improper to compile a street directory by sending
out slips for checking, which contained entries from the plaintiff's
directory.'* Equally, it is wrong to adopt the same quotations which
CH.APTER - 10 : 429

have been selected for a critical edition of a Shakespeare play", or an

account of historical incidents which digest the available sources^*. In
such cases, a defendant who is shown to have adopted the plaintiff's
imaginative emibellishments or plain errors will be in particular jeopardy.

(vii) Where the defendant's use will seriously interfere

with plaintiff's exploitation of his work :

While infringement may occur even if there is no likelihood of

competition between plaintiff and defendant, the possibility of such
competition or its absence may nevertheless be treated as a relevant
factor. This factor undoubtedly played a more significant role while
copyright was still in the process of acquiring its character as a full right
of property, and before substantial taking was distinguished from
notions of "fair use"'^. But it remains a practical consideration that
courts are unlikely even entirely to discount.^" Thus, it is referred to by
Farwell J. in deciding that four brief lines from a popular song did not
infringe when taken as a heading for a serial story in the Red Star Weekly*^

(viii) Reproduction by the Original Author :

Suppose that an author creates a work, and subsequently, at a
time when he doesn't own the copyright,^^ he reproduces it in a second
work. Some concession in his favour seems called for, in order to allow
him to continue doing the kind of the work at which he is proficient. But
across the spectrum of copyright it is difficult to know how far judges
would accord him greater freedom than is permitted to others. In respect
of artistic works, a special compromise is embodied in legislation : the
artist may make substantial reproductions, even using the same mould
CH.APTER - 10 : 430

sketch or similar plan, provided that the subsequent work doesn't repeat
or imitate the main design of the earlier works/^ Where other types of
work are concerned, a similar approach might well be adopted : the
relation between the two end products would be considered rather than
the relation between the first work and what has been copied from it.
The fact that the author made his reproduction unconsciously (if he can
be believed) would probably enhance any claim not to have infringed/^

(C) INFRINGEMENT CARRIED OUT BY OTHERS :

Infringement of copyright being a tort, in the ordinary run of
things an employer will be vicariously liable^^ for any infringement
committed by an employee in the course of his employment and for the
acts of independent contractors which he specifically requested. Under
earlier law, these principles seem to have delimited the scope of one
person's liability for infringements by another.^^ But, in contrast with
the case of patents, judges have more recently been ready enough to
extend the scope of responsibility for the infringement by others.
In this they have been assisted by the legislature, which has
introduced three forms of infringement : (i) "authorising" infringe-
ment by others:"*' (ii) "permitting" a place of public entertainment to be
used for performance of a work^*; and (iii) providing apparatus for
performing, playing or showing a work, etc.'*' (of these, (ii) and (iii) are
now forms of secondary infringement which require proof of the
defendant's com plicity in some way).
"Authorise" has been read as bearing its dictionary meaning of
"sanction, countenance or approve".'" In line with these broad syn-
CH.APTER - 10 : 431

onyms, it has been said that "indifference, exhibited by acts of commis-

sion or omission, may reach a degree from which authorisation or
permission may be inferred".'' Accordingly in a case concerning
performing rights both authorising and permitting may be alleged, and
they amount to much the same thing. "Permitting" performance is
expressly stated to be subject to the defences of reasonable innocence
and absence of profit making; "authorising" is not the subject of
specific exceptions, but the meaning given to the world excludes
liability when the defendant could not reasonably except that another
would infringe. It is also necessarv to show an act of infringement that
had occurred as a result of the authorisation."
To take some examples : People who organise public entertain-
ments by hiring musicians and independent contractors are likely to be
authorising or permitting infringement if they simply leave the choice
of music to the musicians." Accordingly they ought to procure an
appropriate licence from the Performing Right Society themselves or
require the musicians to do so. Where the defendant is not the organiser
of the entertainment, but only, for instance, the owner of the hall, he is
unlikely to be held culpable if he is simply "indifferent" to the choice
of music.^^
In other fields, authorising may also occur by implication. A
person who transfers the serial rights in a book authorises their publi-
cation in that form, since the specific intent is apparent." An Australian
University was held to have authorised infringement by allowing
library readers to use it's copying machine without giving precise
information about the limits of copying within the copyright legislation
CH.APTER - 10 : 432

and without attempting any supervision to prevent infringement : the

degree of indifference was too blatant to escape liability.'* On the other
hand, those who provide the copying machinery or the material for
home taping will rarely be found to have necessary control over what is
then done, to be "authorised"." The manufacturer of a twin-deck
cassette recorder did not authorise infringement of particular copy-
rights, even though he advertised the capabilities of his product, since
he also drew attention to copyright obligations.'*

(D) CLASSES OF PROHIBITED ACTS :

The United Kingdom legislation of 1988 defines the "acts re-
stricted by the copyright" in general terms, each type applying to the
various categories of work unless a specific exception is given. The
1956 Act, by contrast, took each category of subject-matter and listed
the relevant acts of infringement. The new technique seems rather more
straight forward. The U.S. Act of 1976 talks of exclusive rights of
copyright owners, and violations of such rights, basically expressed in
general terms, classes them infringements. Similarly, the Indian Copy-
right Act 1957 as amended in 1994 also says that doing of anything, the
exclusive right to do which is by the Act conferred upon the owner of
the copyright is the infringement of copyright.
In the patent law, as we know, the monopoly right was extended
to use, as well as manufacture and sale, thus enabling the patentee and
his associates to exercise whatever control over their own products
seemed advantageous. In copyright law, the same basic assumption has
not been made." The typical act of infringement has been the making of
CH.APTER - 10 : 433

copies. Control over them and their contents once legitimately made has
been conceded only on a case-by-case basis : the rights over public
performance and broadcasting are one form of control over use; the
newly created rental right in sound recordings, films and computer
programs is another.
Often enough the various rights that make up copyright are
separately assigned or made the subject of an exclusive licence. The
assignee or exclusive licensee is then entitled to sue only in respect of
his own part and it may be necessary to decide just what his part is if the
division up has been made by reference to the different acts listed in the
statute, then the question will turn on the meaning of the statutory
words.*'' If some other, more specific right has been conceded (such as
the right to translate into French, or the right to engrave a picture for a
particular book) then the particular assignment or licence will require
interpretation.

(E) RIGHTS CONCERNED WITH REPRODUCTION

& ADAPTATION :

The U.K. Act of 1988 distinguishes two broad categories of

infringement : restricted acts (or primary infringement) which occur
without regard to the defendant's state of mind: and secondary infringe-
ment which are committed only if the defendant know or had reason to
believe a defined state of affairs relating to infringement. Similar
provision is made in the Indian law by the 1994 Amendment.*"

(i) Primary Infringement :

Copyright in a work in all the three countries i.e. U.K., U.S.A.,
CH.APTER - 10 : 434

& India, may be infringed by copying it; issuing copies of it to the

public or by making an adaptation of it." Copying a work, so far as
concerns literary, dramatic, musical and artistic copyright, means "re-
producing the work in a material form' - a formula introduced by the
British Act of 1911.*'' Some of the material forms are specifically listed:
storing the work in any medium by electronic means - which clearly
covers computer storage and presumably extends to the incorporation
of the work in a record or film, converting a two-dimensional artistic
work into three dimensions, and vice-versa^^. But other changes of form
may also count: for instance, turning a story into a ballet, copy a
photograph by painting,^^ making a knitting pattern into a fabric" and
turning a drawing, such as a cartoon, into a revue sketch,^"* Novel
analogies can be made, subject always to the need to satisfy the test of
substantial taking.
Quite apart from this, certain acts of adaptation constitute in-
fringement : turning a literary work into a dramatic work or vice versa
: translating either kind of work or turning it into a picture form (such
as a comic strip) ; arranging or transcribing a musical work (by, for
instance, harmonizing or orchestrating it).*^
The new U.K. legislation is not so specific as its predecessor
about what acts of "copying'' infringe sound recording, film, broad-
casting and cable-casting copyright. Presumably, as before, this in-
cludes making recordings or films that are substantial copies; but could
it now also cover the transcription into written form of the material on
(say) a recording ?
Copying also includes specific cases. Making a photograph of the
CH.APTER - 10 : 435

whole or a substantial part of any image forming part of a film,

broadcast or cable programme - for instance for a post-card or poster -
is such an infringement.™ And the publisher's copyright in typographi-
cal format is infringed (solely) by making a facsimile copy, even if it is
enlarged or reduced.^'
Issuing copies of a work to the public is the form of primary
infringement which relates only to first putting the copies in question
into circulation, and not, in general, to subsequent distribution, sale,
hiring, loan or importation into the United Kingdom^^ (since these acts
fall under the heading of secondary infringement). However, to this
there is now one important exception. In respect of sound recordings,
films and computer programs, it is an act of primary infringement to rent
copies to the public, and this includes not only supplying a copy on
terms that it will or may be returned for payment or as part of services
or amenities of a business, but also lending by public libraries whether
or not for a charge."

(ii) Secondary Infringement :

Infringement of all forms of copyright may be committed by a
defendant concerned in the commercial exploitation of copies, if he
knows or has reason to believe that the copies were infringements when
they were made. In the case of imported copies this includes notional
infringements, i.e. Copies that would have infringed if they had been
made in Britian or would have constituted a breach of an exclusive
licence agreement relating to that work. The stages of expolitation in
question are : importing, possessing in the course of a business, selling,
CH.APTER - 10 : 436

letting for hire, offering or exposing for sale or hire, and exhibiting in
public in the course of a business, and distributing either in the course
of a business, or otherwise to an extent that prejudicially affects the
copyright owner.
As to the defendant's state of mind in secondary infringement,
the previous law required it to be shown that the defendant had
knowledge that the copies in issue were infringements.^* But that had
been read as requiring only that he had "notice of facts such as would
suggest to a reasonable man that "breach of copyright was being
committed".^^ The new phrase, "knew or had reason to believe", for
all its apparent subjectivity, is likely to be understood in the same sense.
(F) Rights Concerned With Performance And Broadcasting :
(') The Various Performing Rights :
The extension of copyright from the making of copies to the
giving of public performances began in 1833. With modern technology,
this has grown into a bundle of related aspects of copyright that can be
loosely grouped as "performing rights". These include, performing,
playing or showing a work in public; broadcasting it or including it in
a cable programme (cable - casting).^^
The possibilities of infringement in this field have become
complete. If, for instance, a copyright musical work is performed to a
public audience at the same time as being televised, both the perfor-
mance and the broadcast require licence. If broadcast is received and
shown publicly this calls for licence of the copyright in the music , and
save (where the showing is free) of that in the broadcast. If the original
performance was recorded this will be either in the form of a sound
CH.APTER - 10 : 437

recording or a film with associated sound track (each of which will be

a form of reproduction). If either the recording or the film is broadcast,
this needs a licence. But the owner of copyright in the sound recording
or film (as distinct from that in the musical work) has no right in respect
of free public playings or showing of the broadcast.
Performance is too ephemeral a phenomenon for it to be easy for
copyright owners to enforce their performing rights individually. Those
who have copyright in musical works and associated lyrics have been
leaders in establishing societies for the collective enforcement of their
rights. The great proliferation in the exploitation of music through
recording and broadcasts has made this economically feasible in many
countries and an international network of performing right societies
now exists. In Britain, where record companies have performing rights
in their recordings, they have a separate collecting society to assert their
rights. In various countries, indeed, the economic power of collecting
societies has become suspect.

(>") Performance In Public :

It has been left to the courts to draw the line between perfor-
mances in public and in private. In 1984, the Court of Appeal
characterised as "quasi-domestic" - and therefore private -an amateur
performance of a play in Guy's Hospital to an audience of doctors and
their families, nurses, attendants and students." But this was regarded
(even in the decision itself) as marking the extreme outpost of free
territory. To be in public performance does not have to be a playing
audience or by paid performances;""* it is enough that entertainment is
CH.APTER - 10 : 438

being offered as an incident of some commercial activity (such as

running a hotel, or even a shop that is seeking to sell the records being
played)," or of industrial production ("music while you work")''" Even
such worthy institutions as Women's Institute and a Football Club's
Supporter's Association engage in public performance, whether they
restrict audiences to their own members or allow in guests;*' and the Act
makes clear that a school play or other performance will not be exempt
if parents or friends are present. Green M.R. laid particular stress on the
need to consider the relationships of the audience to the owner of the
copyright rather than to the performers.*^ This is one way of emphasising
the primacy of the owner's entitlement to an economic return from his
proprietary rights; the fact that an organisation is socially desirable
does not normally give it a claim to free use of copyright material. The
one general exception concerns the sound recording right (as distinct
from copyright in music and words) where records are played at a
charitable or similar club or organisation.

(F) FAIR DEALING AND LIKE EXCEPTIONS :

The requirement of "substantial taking" prevents the owner

from objecting to minor borrowings from his copyright work. And, as we
have just seen above, the requirement that a performance be in public
means that his licence is unnecessary for a private performance even of
the complete work. In the copyright legislations of three countries under
study presently, a detailed list of exceptions is found." Some of them, such as
those relating to education, concern important conflicts of interest. Here they
are listed in order that they can be compared in the round.
CH.APTER - 10 : 439

(i) Fair Dealing :

The three most important of these exceptions turn upon a quali-
tative assessment. They exempt copying for certain purposes if it
amounts to no more than" fair dealing". In these cases the courts are
left to judge fairness in the light of all the circumstances. But other
exceptions are more factual; for instance, unduplicated copying in the
course of instruction is exempt irrespective of the amount copied.
Priorto earlier legislations (1911 of U.K., 1914 of India & 1909
of U.S. A), the three main "fair dealing'' exception were fore-shadowed
in the case-law as forms "fair use", a concept that was not clearly
distinguished from "insubstantial taking". If there is substantial
copying, it is a nice question today whether the use could nevertheless
be justified for a reason beyond the confines of statutory exceptions.
Certainly this would be difficult if the case was closely analogous to
one of the statutory exceptions but just outside it; the more so if the
statutory exceptions are to be strictly construed as limitations upon
property rights.*^ Nonetheless a 'defence' of publication in the public
interest has been recognised to exist and now has a place in the
statutes.*' In Australia it has been held that it is less extensive than in
a claim based on breach of confidence*^; but in England the tendency
been to treat the two cases alike.*^
The first fair dealing exception is that covering purposes of
research or private study, which now applies to the copyright in literary,
dramatic, musical and artistic works, and published editions.
The representatives of educational, author, and publisher
organisations agreed upon certain guidelines which are described in the
CH.APTER - 10 : 440

United States House Report as a reasonable interpretation of the

minimum standards of fair use.*' These guidelines provide, with respect
to books and periodicals, that a teacher may, subject to certain prohibi-
tion make a single copy of a Chapter from a book, an article from a
periodical or newspaper, a short story, short essay or short poem, a
chart, graph, diagram, drawing, cartoon or picture from a book, periodi-
cal, or newspaper, for the purpose of scholarly research, use in teach-
ing, or for preparation to teach a class. Multiple copies for classroom
use, but not to exceed in any event more than one copy per pupil in a
course, are permissible, provided each copy bears a copyright notice
and the copying meets the text of (I) brevity^*^, (2) spontaneity^', and (3)
cumulative effect. ^^
The congressional guidelines were designed to give teachers
direction as to the extent of permissible copying and to eliminate some
of the doubt which had previously existed in this area of the copyright
laws."^ The guidelines were intended to represent minimum standards
of fair use. These guidelines, while not intended to limit the types of copying
pennitted under the standards of fair use, and while recognising that certain
types of copying permitted under the guidelines may not be permissible in the
future, or that in the future other types of copying not permitted under the
guidelines may be permissible under revised guidelines may nevertheless
be persuasive in determining proper educational fair use.
The copying permitted by the guidelines may not be used to
create, replace, substitute for authorities, compilations, or collective
works, and copying is not allowed from such "consumable" works as
workbooks, exercises, standardized tests, answer sheets and similar
CH.APTER - 10 : 441

materials, nor may the student be charged for the copy beyond the actual
cost of photocopying. Where a teacher created a "learning activity
package" concerning cake decorating, by copying II out of the 28
pages of a copyrighted booklet, used such package over several aca-
demic years and didn't acknowledge the owner's authorship or copy-
right, such copying did not qualify as fair use under these guidelines.''^
The copying of a computer programme for use by students is probably
not a "fair u s e " because of the need to copy substantially the entire
programme. Similar guidelines have been adopted in regard to educa-
tional uses of music.'' But no guidelines for classrooms use have been
developed with respect to off-the-air taping of copyrighted audio-visual
works incorporated in radio or television broadcasts although it has
been recognised that the fair use doctrine has some limited application
in this area.'^ The use of excerpt from copyrighted works for the purpose
of educational broadcasting activities, where such use is not otherwise
exempt and is not subject to compulsory licensing provisions'^ may
nevertheless be a fair use, depending on whether the performers,
producers, directors, and others responsible for the broadcast were
paid, the size and number of excerpts taken, and in the case of recording
made for broadcasts, the number of copies reproduced and the extent of
their re-use or exchange.'*
(il) Parody, Satire Or Burlesque :
A ' 'parody" protected by the fair use provisions has been defined
as a work in which the language or style of another work is closely
imitated or mimicked for comic effect or ridicule and in which some
critical comment or statement about the original work is made reflecting
CH.APTER - 10 : 442

the original perspective of the parodist, thereby giving the parody social
value beyond its entertainment function.^^ It is in the interest of
creativity, not piracy, to permit others to take well-known pharases and
fragments from copyrighted works and add their own contributions of
commentary or humor.'"" The parody branch of the fair use doctrine is
a means of fostering the creativity protected by the copyright law : it
balances the public interest in the free flow of ideas with the copyright
holder's interest in the exclusive use of his work.
" S a t i r e " forpurposesof the fair use provision is defined as work
which holds up the vices or shortcomings of an individual or institution
to ridicule or derision, usually with an intent to stimulate change or the
use of wit, irony, or sarcasus for the purpose of exposing and discred-
iting vice or folly.'"' Similarly, it has been said that the law permits more
extensive use of the protected portion of a copyrighted work in the
creation of a burlesque than in the creation of other fictional or dramatic
works not intended as burlesque.'"^
Parody and satire have been said to be deserving of substantial
freedom, both as entertainment and as a form of social and literary
criticism. Where the parodist does not appropriate a greater amount of
the original work than is necessary to recall or conjure up the object of
his satire. While, a parody song to a copyrighted tune may be a fair
use,'"^ a burlesqued or parodized presentation has been held to be no
defence to copyright infringement when substantially more material
was "borrowed" from the copyrighted original than necessary for
successful burlesque."''*
Although it has been that the Copyright Acts do not expressly
CH.APTER - 10 : 443

exclude pornographic materials from the parameters of the fair use

defence since an obscenity exception to the fair use defence could
fragment national Copyright Act standards,'"^ the U.S. Courts have
generally been reluctant to permit the use of the "fair use" defence when the
alleged parody or satire has resulted in a sexually explicit work.

(iii) Photographs, Reporting of Current Events :

This fair dealing exception permits all works other than photo-
graphs to be used for reporting current events. '"* Photographs have been
differently treated in order to preserve the full value of holding a unique
visual record of some person or event. To come within the exception,
the event itself be current and not the pretext for receiving historical
information : the death of the Duchess of Windor did not justify an
exchange of letters between her and the Duke being published without
copyright licence.'"^ The exception must be read in conjunction with a
number of cognate provisions.'"* Together they are of particular impor-
tance to the public affairs media and will be related to that field later.

(iv) Criticism, Review etc :

It is this fair dealing exception that is most general of all,
allowing works to be used for purposes of criticism or review (of
themselves or another work), one precondition of fairness being that the
source should be sufficiently acknowledged Despite its potential range,
the defence has not been much elucidated in the case-law. The Court of
Appeal has held that the criticism or review may concern the ideas
expressed as well as the made of expression"". It has also been said that
it can not be "fair" to publish an unpublished work for this purpose at
CH.APTER - 10 : 444

least if it is known to have been improperly obtained"" and the courts

will not permit wholesale borrowing to be dressed up as critical
quotation'". Lord Denning M.R.'s remarks stressing that fair dealing is
inevitably a matter of degree can usefully be applied not only to this
head but in spirit equally to the other two :
You must consider first the number and extent of the
quotations and extracts. Are they altogether too many
and too long to be fair? Then you must consider the
use made of them. If they are used as a basis for
comment, criticism or review, that may be a fair
dealing. If they are used to convey the same informa-
tion as the author, for a rival purpose, they may be
unfair. Next, you must consider the proportions. To
take long extracts and attach short comments may be
unfair. But short extracts and long comments may be
fair. Other considerations may come to mind also.
But, after all is said and done, it must be a matter of
impression."'
Beyond above cases of "fair dealing" and the like, there are
numerous exceptions which, as a whole, are not easily classified. Thus
in the final analysis, in determining whether the use made of a work in
any particular case is fair use the factors to be considered shall include -
(a) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit or educational
purposes;
(b) the nature of the copyrighted work;
CH.APTER - 10 : 445

(c) the amount and substantiality of the portion used in relation to

the copyrighted work as a whole; and
(d) the effect of the use upon the potential market for or value of the
copyrighted work.
Under the first factor, one must determine if the use is commer-
cial; under the fourth factor, one must determine the impact of the use
on the potential market for or economic value of, the work. The second
factor focuses on the nature of the work, and the third focuses on the
amount used in relation to the total work. These factors make sense only
in economic terms, particularly in view of the philosophy underlying
U.K., U.S.A and Indian copyright laws: the protection of the copyright
owner's economic rights in the market place.
It can, thus, be said that there is a remarkable similarity in the
three copyright systems under study on the question of infringement &
law in these jurisdictions on this issue is almost settled. The 1994 Indian
Amendment on the issue of infringement of copyright in computer
software has put the Indian copyright law at par with the Internatially
recognised standards.
 CH.APTER - 10 : 446

1. See. e.g. Pole V Curl (1741) 2 Atl. 341; Gee V. PritCh.ard (1818)
2 Swans. 402; Phillip V. Pennell (1907) 2 Ch.. 577; Hauhart (1984)
13 U. Ball. L.R. 244.
2. E.g. a letter to the edition Under a will a bequest of an unpublished
manuscript or artistic work is now to be construed as including the
copyright: See U.K. copyright. Designs & Patents Act, 1988, Sec-
tion 89.
3. For instance Droit de suite, supra. Chapter II, "Subject matter of
Copyright Right and Rights of Authors".
4. In any case an implied licence (exclusive or non-exclusive accord-
ing to circumstances) may be a more reasonable implication.
5. See, U.K. Copyright, Designs & Patents Act 1988, Section 16;
Indian Copyright Act 1956, Section 51 (i); U.S. Copyright Act
1976, Section 106.
6. Sargant J., Corelli V. Gray (1913) 29 T.L.R. 570; Diplock L.J.,
Francis Day V. Bron (1963) Ch. 587; Learned Hand J., Fisher V.
Dillingham 298 Fed. 145 (1924).
7. Mansell V. Valley Printing (1908) 2 Ch. 441; Byrne V. Statist Co.
(1914) 1 K.B. 622. Innocent defendants may be protected from
liability for damages: see infra Chapter X, "Reme' ies for Copyright
Violations".
8. If the question is whether the defendant's work has come from the
plaintiff's or from independant sources, the defendant may find it
difficult to explain the presence of plaintiff's errors or idiosycrasies in
his text: see, e.g. Harman V. Osborne (1967) 2 All E.R. 324.
9. See generally Francis Day case, supra note 6.
10. Poznanski V. London film (1936 - 1945) Mac. C.C, 107; Harman
Pictures, ibid.
11. Rees V. Melville (1911-1916) Mac. C.C. 168; Ricordi V. Clayton &
Waller (1928-1935) Mac. C.C. 154; Industrial Furnaces V. Reaves
(1970) R.RC. 605.
12. Per Wilberforce J., Francis Day V. Bron, Supra note 6.
 CH.APTER - 10 : 447

13. Lindley L.J., Hanfstaegl V. Empire palace (1894) 3 Ch.. 109;

Blackburn J., ex p. Beal (1868) L.R. 3 Q.B. 387. The leading
modern authorities are King Features Syndicate V. Kleeman (1941)
A.C. 417; British Leyland V. Armstrong (1986) R.P.C. 279 (H.L.)
The principle now has statutory force as well: U.K. Copyright,
Designs & Patents Act 1988, Section 16 (3).
14. (1954) 71 R.P.C. 227.
15. U.K. Copyright, Designs & Patents Act 1988, Section 16(3). It
might have been better to say that the act need not involve the
making of anything that could be a copyright work.
16. U.K. Copyright, Designs & Patents Act 1988, Section 16 (3) (a).
17. Lord Reid, Ladbroke V. William Hill (1964) 1 W.L.R. 273.
18. Paterson J., University of London Press case (1916) 2 Ch.. 601
quoted by Lords Reid and Pearce in Ladbroke V. William Hill, ibid.
19. For a striking example, see Elanco V. Mandops, (1980) R.P.C. 213.
20. Krisarts V. Briarfine (1977) F.S.R. 537; as to indirect copying of a
drawing for an object : Ward V RiCh.ard Sankey (1988) F.S.R. 66.
21. Redwood Music V. Ch.appell (1982) R.P.C. 109 (adaptation of
song-generous view of difference).
22. (1916) 1 Ch. 261. The plaintiff's claim also failed for its "grossly
immoral" tendency.
23. (1960)2 Q.B. 60.
24. This derives from Linley L.J., Hanfstaegl V. Empire Palace, Supra
note 13.
25. Schweppes V. Wellington (1984) F.S.R. 210 {Schlurpps label
intended as joke; plaintiff not amused); Williamson Music V.
Pearson Partnership (1987) F.S.R. 97.
26. Jervis C.J., Sweet V. Benning (1855) 16 C.B. 459.
27. (1980) R.PC. 213.
28. Correlli V. Gray (1913) 30 T.L.R. 116; Vane V. Famous Players
(1928-1935) Mac. C.C.6.
29. Maugham J., Kelly V. Cinema Houses (1928-1935) Mac. C.C. 362.
30. In Fernald V. Jay Liwis (1953) (1975) F.S.R. 499, even the taking
 CH.APTER - 10 : 448

of one episode out of an episodic novel for a film was held to

infringe when the literary characteristics of the episode were all
copied and there were some startling similarities of dialogue.
31. An example given by Scrutton L.J.. Vane case, supra note 28 at
pp. 8-9.
32. Bauman V. Fussel. (1978) R.P.C. 485.
33. (1969) 1 Ch.. 508; see also John Fairfax V. Australian Consolidated
Press (1960) 60 S.R. (N.S.W.) 413.
34. (1890)25 Q.B.D. 99.
35. See Jarrold V. Houston (1857) 3 K & J. 708.
36. Kelly V. Morris (1866) L.R. 1 Eq. 677; see also Morris V. Ashbee
(1868) L.R. 7 Eq. 34 (poocher turned gamekeeper). The Whitford
Committee (Cmnd. 6732) considered that new versions of the
ordnance survey would be infringed if details were systematically
copied onto other maps.
37. Collins M.R., Moffalt & Page V. Gill (1902) 86 L.T. 465.
38. Harmon V. Osborne, Supra note 8; Ravenscroft V. Herbert (1980)
R.RC. 193.
39. Thus initially such, activities as translation and abridgement did
not count as infringement.
40. Chappell V. Thompson (1928-1935) Mac. C.C. 467; Note also Parker J.,
Weatherby V. International Horse Agency (1910) 1 Ch. 297 at p. 305:"...
the nature of the two publications and likelihood or unlikelihood of their
entering into competition with each other is not only a relevant but may
even be a determining factor in the case. But... an unfair use may be made
of one book in the preparation of another, even if there is no likelihood
of competition between the former and the latter. After all
copyright is property..".
41. Chappell V. Thompson, ibid, also see Ravenscroft V. Herbert Supra
note 38.
42. If he has given up rights by assignment, his freedom to copy the
work may be governed by its express term.
43. U.K. Copyright, Designs & Patents Act 1988, Section 64.
 CH.APTER - 10 : 449

44. On the difficulties of deciding this, see Industrial Furnaces V.

Reaves (1970) R. P.C. 605.
45. To tell a servant not to infringe will not affect this liability if he
defies instructions in the course of employment: PRS V. Bradford
Crop. (1917-1923) Mac. C.C. 309.
46. See especially Karno V. Pathe( 1909) lOOL.T. 260-film distributor
did not " c a u s e " representation of a play in public by supplying
theatre operatior with film of it; only the operator infringed cj.
Falcon V. Famous Players (1926) 2K.B. 474.
47. U.K. Copyright, Designs & Patents Act 1988, Section 16(2).
48. U.K. Copyright, Designs & Patents Act 1988, Section 25.This
relates only to literary, dramatic and musical works; a defence
concerning non-profit activities has been dropped; The Indian
copyright (Amandment) Act 1994, Section 51(a) (ii).
49. U.K. Copyright, Designs & Patents Act 1988, Section 26.
50. Tourlin J. Evans V. Hulton (1923-1928) Mac. C.C. 51.
51. PRS V. Ciryl(1914) 1 K.B. 1 ; Moorhouse V. University of N.S.W.
(1975)6 A.L.R. 193.
52. RCA V. Fairfax (1982) R.P.C. 91 (newspaper article suggesting the
possibility of home tapping); WEA International V. Hamimax (1988)
101 RR. 349.
53. PRS V. Bradford Corp, Supra note 45; Australian PRA V. Contabury
- Bankstown Club (1964-1965) N.S. W.R. 138.
54. Vigneux V. Canadian PRS (1945) A.C. 104; Adelaide Corp. V.
Australasian PRS (1928) 40 C.L.R. 481 (despite knowledge that
infringement is likely).
55. Evans V. Hulton (1923-28) Mac.C.C. 51.
56. Morhouse case, supra note 51.
57. A & M Records V. Audio Magnetics (1979) F.S.R. 1.
58. CBS U.K. V. Amstrad (1988) R.P.C. 567.
59. The supposed droit Je destination in French and Belgian Copyright
law fulfils much the same function as the British Patent Law
doctrine; it allows, for instance, a rental right to be read into the law
 CH.APTER - 10 : 450

without specific provision: see E.C. commission. Green Paper,

Copyright and the Challenge of Technology [Com. (88) 172] 146.
60. Chappell V. Columbia (1914) 2 Ch. 124.
61. Indian Copyright (Amendment) Act 1994, Section 51 (i) (a) (ii).
62. U.K. Copyright, Designs & patents Act 1988, Sections 16-18: U.S.
Copyright Act 1976, Section 50; Indian Copyright Act 1957. Section
51.
63. U.K. Copyright Act, 1911, Section 17(2). It makes no difference
that the copies are transient or incidental: Section 17(6).
64. U.K. Copyright, Designs & Patents Act 1988, Section 17(3). Con-
verting a literary work (e.g. a jumper) is not, however, a reproduc-
tion: Brigid Foley V. Eliot (1982) R.P.C. 433; Duriron V. Hugh
Jennings (1984) F.S.R. 1. (e.g. a knitting pattern) into a three
dimensional.
65. Holland V. Van Damm (1936-1945) Mac. C.C. 69.
66. Hanfstaegl V. W.H. Smith (1905) 1 Ch. 519.
67. Leorse V. Hamick Jersey (1974) R.P.C. 42.
68. Bradbury, Agnew V. Day (1916) 32 T.L.R. 349.
69. The final clause of Section 21 suggests that these forms of infringe-
ments are closely related to infringement by reproduction in a
material form " N o inference shall be drawn from this section as to
what does or does not amount to copying the work".
70. U.K. Copyright, Designs & Patents Act 1988, Section 17(4), giving
statutory effect to spelling Goldberg V. BPC Publishing (1981)
R.PC.280.
71. U.K. Copyright, Designs & Patents Act 1988, Section 17(8), sec-
tion I6i, facsimile copy.
72. Section 18, ibid.
73. Section 22-24,27, ibid. As already noted, the person who first puts
copies into circulation commits the primary infringement of issuing
copies to the public.
74. U.K. Copyright Act 1956, Sections 5,16.
75. Harvey J., Albert V. Hoffnung (1922) 22 S.R. (N.S. W. 75 at 81;
 CH.APTER - rO : 451

followed by Whitford J., Infabrics V. Jaytex (1978) F.S.R. 451 at

464-465; and see at 467: was the defendant's selection "put on
inquiry" Did he turn "a blind eye to an enquiry which he should
have known he ought to have made" Once apprised of the truth he
was allowed a number of days to make his own inquiries. Van
Dusem V. Kritz (1936) 2 K.B. 176.
76. U.K. Copyright, Designs & Patents Act 1988, Section 19,20; U.S.
Copyright Act, 1976,Section 605(b); Indian Copyright Act 1957,
Section 51; see infra chapter VII . "Performers Rights".
77. Duck V. Bates (1884) 13 Q.B.D. 843; under the British Act of 1833,
the requirement was in any case that the performance be in a " 'place
of public entertainment".
78. PRS V. Hawthornes Hotel (1933) Ch. 855.
79. PRS V. Harlequin Record (1979) F.S.R. 233.
80. Ernest Turner V. P.R.S. (1943) Ch. 167.
81. Jennings V. Stephens (1936) Ch.469; RR.S. V. Rangers club (1975)
R.RC.626.
82. In the Jennings and Turven cases, Supre notes 80,81.
83. U.K. Copyright, Designs & Patents Act 1988, Section 28,50; U.S.
Copyright Act 1976, Section 107(1) (4); Indian Copyright Act
1957, Section 52.
84. This approach was taken in Howkes V. Paramount (1934) Ch. 593
(C.A.) to a fair dealing exception in the British Act of 1911.
85. For instance, copyright. Designs & Patents Act 1988, Section
171(3), preserving rules of law preventing or restricting the
enforcement of copyright, on grounds of public interest or other-
wise.
86. Commonwealth of Australia V. Fairfax (1980) 32 A.L.R. 485; see
also Kennard V. Lewis (1983) F.S.R. 346.
87. Hubbard V. Vosper (1972) 2. Q.B. 84 (C.A.); Beloff V. Pressdram
(1973) 1 All E.R. 241.
88. U.K. Copyright, Designs & Patents Act 1988, Section 29; U.S.
Copyright Act 1976, Section 107 (1); Indian Copyright Act 1957,
 CH.APTER - 10 : 452

Section 52 (a) (i).

89. House Rep. No 94 - 1476, P. 68.
90. The guidelines limit the amount of the work that may be copied to
a poem of less than 250 words, printed on not more than two pages;
an excerpt of not more than 250 words from a longer poem; prose
articles, stories, or essays of less thatn 2500 words in their entirety
or excerpts from longer prose works limited to 1000 words or 10
percent of the work, whichever is less, but in any event a minimum
of 500 words; illustrations such, as one chart, drawing, or picture of
a work may also be included. House rep. No 94 - 1476, p. 68.
91.- To meet the test of spontaneity, the copying must be at the instance *
and inspiration of the individual teacher, not directed by higher
authority, where the teacher's decision to use the work in class does
not allow for a timely reply to a request for permission. House Rep.
No. 94 -1476, p. 69.
92. To satisfy the "cumulative effect" requirement, the copying must
be for only one course in the school, and except for current news
periodicals, newspapers, and current news sections of periodicals,
only one short poem, article, story, essay, or two excerpts there-
from, may be copied from the same author or three excerpts from the
same collective work or periodical volume, during one class term;
and no more than 9 instances of such multiplying for one course
during one class term shall be permitted. House Rep. No 94 - 1476,
p. 69.
93. Morcus V. Powle, (CA 9 Cal) 695 F2d 1171.
94. Ibid.
95. House Rep. No 94 - 1476, pp 70 et seq.
96. House Rep. No 94 - 1476, p 72, noting that nothing in Section 107
of U.S. Copyright Act 1976 is intended to change or prejudge the
law on this point.
97. U.S. Copyright Act 1976, Section 108.
98. House Rep. No. 94 -1476, p. 72, noting further that the availability
of the fair use doctrine to educational broadcasters would be
 CH.APTER - 10 : 453

narrowly circumscribed in the case of motion pictures and other

audiovisual works.
99. Metro - Golwin, Mayer, Inc. V. Showcase Atlanta Cooperative
Productions, Inc. (ND Ga) 479 F supp 351.
100. Warner Bros, Inc. V. American Broadcasting Cos. (CA 2 NY) 720 F
2d 231).
101. Metro - Golwin Case, Supra note 99.
102. Columbia Pictures Corp. V. National Broadcasting Co. (DC Cal) 137
F Supp 348.
103. Elsmere Music, Inc. V. National Broadcasting Co. (CA2NY) 623
F2d 252, holding that a skit on the "Saturday Night Live" television
program, which poked fun at a New York city's public relations
compaign and its theme song by singing " I love Sodom" to the tune
of the copyrighted "I love New York" was a fair use.
104. Benny V. Leoew, Inc. (CA9 Cal) 239 F 2d 532.
105. Pillsbury Co. V. Milky Way Productions, Inc. (FND Ga) 8 Media
L.R. 1016.
106. This may be in a newspaper or magazine, in which case sufficient
acknowledgement is required; or in a sound recording, film broad-
cast or cable - cast where acknowledgement is not called for.
107. Associated Newspapers V. News Group (1986) R.P.C. 515.
108. Especially in the U.K. Copyright, Designs & Patents Act, 1988,
Section 31 (incidental inclusion); Sectin 58 (record of spoken words);
section 62 (artistic works on public display).
109. Hubbard V. Vosper, Supra note 87.
110. British oxygen V. Liquid Air (1925) Ch. 383; Beloff V. Pressdram
(1973) 1 All E.R. 241.
H I . Mawman V. Tegg(1826) 2 Russ 385.
112. Hubbard V. Vosper, Supra note 87.